February 10, 2011
For years, employees using employer computer networks have been warned that emails are not private and should be treated not as letters in sealed envelopes, but as open postcards. Yet, employers and employees may be surprised to know that even employees’ “privileged” emails to their private attorneys may not be confidential if the emails are sent through the employer’s email system.
Computer Usage Policy Trumps California Employee’s Attorney- Client Privilege
In a recent California Court of Appeal decision, Holmes v. Petrovich Development Co. (2011) 191 Cal.App.4th 1047, the Court allowed the use of such emails against a plaintiff-employee who sued her employer, despite the usual sanctity of the attorney-client privilege.
The employee in Holmes emailed her supervisor shortly after being hired informing him she was pregnant. In subsequent email exchanges, the supervisor complained the employee’s absence would pose a hardship for the company and the employee should have disclosed her condition sooner. The employee stated that due to her medical history, she waited to inform the employer of her pregnancy until she was past the first trimester and received the results of an amniocentesis.
The supervisor forwarded these email exchanges to the company employees who handled human resources functions and payroll, as well as in-house counsel, because he said he was concerned the employee might be quitting. The employee was upset that the supervisor had forwarded her emails to others in the company and sought legal advice concerning a claim for pregnancy discrimination.
Shortly thereafter the employee resigned and fi led suit against the company for sexual harassment, retaliation, wrongful termination, violation of the right to privacy, and intentional infliction of emotional distress.
The employee believed her personal emails on the company email system were private because she used a private password which no one had asked for or knew, she deleted the emails after they were sent, and she believed that the company did not actually monitor its email system. (It should be noted that the employee did not use a personal web-based email account on her employer’s computer network, and that the privacy of such emails was not addressed by the Court.)
The Court reviewed the company’s policies and concluded that although a communication between persons in an attorneyclient relationship does not lose its privileged character for the sole reason that it is communicated electronically, the facts were “akin to consulting her attorney in one of defendants’ conference rooms, in a loud voice, with the door open.”
The Court found there was no reasonable expectation of privacy in the employee’s email to her attorney. The employer’s handbook, which the employee had read and signed, stated that the company’s technology resources should be used only for company business, employees were prohibited from using the company’s resources to send or receive personal emails, and the company would monitor its computers for compliance with the company policy including inspection of all fi les and messages at any time, for any reason, at its discretion.
Additionally, the internet and intranet usage policy in the handbook specifically stated, “E-mail is not private communication, because others may be able to read or access the message. E-mail may best be regarded as a postcard rather than as a sealed letter.” The employee had also been explicitly advised that employees have no right of privacy with respect to personal electronic communications or messages. Company representatives did not state otherwise, but rather reaffirmed the company’s email usage policies.
It was irrelevant to the Court that the company did not actually monitor the system. The Court analogized: “t is unreasonable to say a person has a legitimate expectation that he or she can exceed with absolute impunity a posted speed limit on a lonely public roadway simply because the roadway is seldom patrolled….”
The Court also commented that the employee likewise had no expectation of privacy in documents she sent to her attorney using the company’s facsimile machine, since she was told such use would be monitored for compliance with company policy which prohibited personal use by an employee.
What Does this Mean for Employers?
A properly worded and circulated technology use policy can allow employer access to otherwise privileged communications by employees in their personal capacities. This does not mean communications of employees to their attorneys are now outside the attorney-client privilege. However, it is a reminder to employers that personal emails can be disclosed more publicly than the author intended, even if they are private internal communications relating to company business and labeled “confidential,” unless protected by some legally recognized privilege.
Employers should review their current technology usage policies and agreements to ensure there is no expectation, direct or implied, of privacy or confidentiality, and that each user knows the employer can monitor and access all electronic messages and files. Employers should be aware that an informal policy that contradicts the company’s written policy may support a finding that such communications are private.
If the employer’s resources are not to be used for personal business, this policy should be clearly stated in writing and consistently enforced. Employers should ensure each employee who has access to or uses the employer’s technology resources has received a complete copy of all such policies and signed an acknowledgement that each person has received, read, understands, and will adhere to those policies.
Employers are encouraged to contact legal counsel to resolve any questions concerning the content or enforceability of technology use agreements or employee handbook language.